AMIN-UD-DIN KHAN, J. With the concurrence of learned counsel for the parties, this Intra-Court Appeal is being decided as "Pacca" case.
2. Through this single judgment, we intend to decide the instant Intra-Court Appeal as well as Intra-Court Appeal No. 180 of 2015 as a preliminary object ion has been raised by learned counsel for the respondent No. 1 with regard to maintainability of this appeal.
3. Brief facts of the case are that respondent No. 1 filed Writ Petition No. 4994 of 2010 to challenge the order dated 31.12.2009 passed by the Chief Settlement Commissioner/Notified Officer, Punjab in CSC Case No. 35 of 1997 and subject matter of Intra-Court Appeal No. 180 of 2015 is Writ Petition No. 4975 of 2010. In the said writ petition, same order of the Chief Settlement Commissioner was challenged whereby the original order of allotment dated 02.02.1952 was set aside.
3. Learned counsel for the respondent No. 1-writ petitioner while relying upon "Mst. KARIM BIBI AND OTHERS versus HUSSAIN BAKHSH AND ANOTHER " (PLD 1984 Supreme Court 344) argues that the original order was dated 02.02.1952. Learned counsel, while making reference to The Displaced Persons (Compensation and Rehabilitation) Act, 1958, states that under Sections 19, 20 and 21, right of appeal, revision and review has been provided, therefore, the instant Intra-Court Appeal is not competent.
4. On the other hand, learned counsel for the appellants argues that the original order is dated 31.12.2009 and not 02.02.1952. Placing reliance upon "Mst. WAZIR BEGUM and others versus MEMBER, BOARD OF REVENUE/CHIEF SETTLEMENT COMMISSIONER and others" (2000 SCMR 989) and "BASAI versus QAIM ALI and 8 others" (PLD 2003 Supreme Court 325), learned counsel states that the instant appeal is competent as after the repeal of the Evacuee Laws, right of appeal, revision or review has not been provided.
5. We have heard learned counsel for the parties on this preliminary issue at length and gone through the case-law cited by learned counsel for the parties.
6. The pivotal question is that whether the order dated 02.02.1952 is the original order for the purpose of consideration of maintainability of instant appeal under Section 3 of the Law Reforms Ordinance, 1972.
Section 3 is reproduced below for ready reference:- [3. Appeal to High Court in certain cases. --(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a single Judge of that Court under [clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan] not being an order made under sub-paragraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal [or one revision or one review] to any court, tribunal or authority against the original order .
(3) No appeal shall lie under sub-section (1) or sub-section (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.
(4) Nothing contained in this Ordinance shall be construed as affecting:
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908), which was pending immediately before the commencement of this Ordinance; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972. "
7. The case-law cited by learned counsel for the appellant i.e. "BASAI versus QAIM ALI and 8 others" (PLD 2003 Supreme Court 325) does not apply to the facts of this case as the subject matter of the said judgment of the August Supreme Court of Pakistan was the proceedings initiated upon any application or the original order was passed after the repeal of the Evacuee Laws, therefore, the view expressed in the said judgment was that since the original order was passed after repeal of Evacuee Laws, therefore, Intra-Court Appeal before this Court was competent. However , the situation is different in the instant case as held by the August Supreme Court of Pakistan in the judgment referred to by learned counsel for the respondent No. 1 i.e. "Mst. KARIM BIBI AND OTHERS versus HUSSAIN BAKHSH AND ANOTHER " (PLD 1984 Supreme Court 344). This very judgment has been passed by four Honourable Judges of the August Supreme Court of Pakistan whereas the earlier referred two judgments were rendered by three Honourable Judges of the August Supreme Court of Pakistan. For taking light and ready reference, we reproduce paragraphs No. 2, 4, 6, 8 and 10 hereunder:- Para-2. The property in dispute consists of two shops which are part and parcel of House S-XX-5-S-61, Canal Park, Lahore which was transferred by the Deputy Settlement Commissioner in favour of the predecessor -in - interest of the appellants and a P.T.D. was issued on 30.11.1962. According to the appellants the transferee converted the two front rooms of the aforesaid houses into shops and let them out to respondent Hussain Bakhsh on rent. However , in 1970 the appellants came to know that the shops were transferred to the first respondent by the Deputy Settlement Commissioner as per his order dated 24.08.1963 as a building site under Settlement Scheme No. VI and a P.T.D. had also been issued in his favour on 24.11.1964. As the property including the disputed two shops originally forming part of the property as rooms had already been permanently transferred in favour of the predecessor -in-interest of the appellants, they challenged the subsequent transfer orders by means of a representation before the Chief Settlement Commissioner for examination and action, if any, in exercise of his suo motu revisional power under Section 2(3) of the Displaced Persons (Compensation and Rehabilitation), Act.
Eventually , the matter was dealt with by Mr. Muhammad Azam, Additional Settlement Commissioner, Head Quarters, Lahore who by his order dated 24.11.1973 held the subsequent transfer of the two shops in favour of the first respondent "to be unlawful and without jurisdiction as the property in question had already been disposed of and the Department had become functus officio to issue any P.T.D. with regard to any property which stands validly disposed of". The first respondent thereupon filed a Constitutional Petition in the Lahore High Court and a learned Single Judge by his order dated 08.07.1974, set aside the order of the Additional Settlement Commissioner and remanded the case to the Settlement Commissioner for being decided afresh. The appellants filed a Letters Patent Appeal against that judgment which was dismissed by a Division Bench by the impugned judgment dated 17.06.1975, on the short ground that it was incompetent in view of Section 3(2) of the Law Reforms Ordinance, 1972.
Para-4. The questions raised in this appeal turn on the interpretation of 3(2) of the Law Reforms Ordinance XII of 1972, as amended by Ordinance No. XXXIV of 1972 and Act VIII of 1972. As a result of the Law Reforms Ordinance, 1972 promulgated on 13.04.1972, the Letter Patent Appeal was wholly abolished under section 3(a), but the subsequent ordinance, promulgated on 10.08.1972 with retrospective operation from the commencement of the main Ordinance, section 3 of the original Ordinance was substituted, abolishing the Letters Patent only in certain category of cases which, it is not material to set forth in detail here, as by Act VIII of 1972 the law was further amended with retrospective effect whereby section 3 of the Law Reforms Ordinance was again substituted so that the material part of which read as under; (1)........................
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from and order made by a Single Judge of that Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan not being an order made under sub-paragraph (i) of paragraph (b) of that clause; Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 201 arises out of any proceedings in which the law applicable provided for at least one appeal to any Court, Tribunal or authority against the original order.
(3)
Para-6. According to the view taken by the learned Judges of the Division Bench the impugned order dated 24.11.1973 by the Additional Settlement Commissioner was passed in proceedings arising out of the original order dated 25.07.1960 by which property was initially transferred in favour of the predecessor -in-interest of the appellants and in that view of the matter , as the Displaced Persons (Compensation and Rehabilitation) Act, 1958 contained provisions for appeal etc. the bar contained in the proviso to subsection (2) of section (3) of the Law Reforms Ordinance as amended was plainly applicable and no Letters Patent Appeal was, therefore, competent.
Para-8. After giving our anxious consideration to the argument urged in support of this appeal we are, however , not impressed by any of the contentions raised. The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional Petition arises provided for at least one appeal against the original order , then no appeal would be competent from the order of a Single Judge in the constitutional jurisdiction to a Bench of two or more Judges of the High Court. The crucial words are the "original order". It is clear from the wording of the proviso that the requirement of the availability of an appe al in the law applicable is not in relation to the impugned order in the Constitutional Petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review , if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced. The word "proceedings" has been used in different enactments and has been subject to judicial interpretation in a number of cases wherein it has received either restricted or wide meaning according to the text and subject- matter of the particular statute. I do not consider it necessary to notice the various judgments in which this word was so construed. Suffice it to refer to the case of Nawab Din v. Member Board of Revenue (1) in which this Court had occasion to examine the scope and meaning of the word as it occurs in section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. A useful discussion will be found in this case with reference to precedents as the meaning of the term "proceedings". An earlier case of Jan Muhammad and another v. Home Secretary, West Pakistan and others (2) was referred to in this connection and the view taken therein was declared by this Court as the correct enunciation of the law on the subject. In the latter case, reference was made to the definition of the term "proceedings" in the book "Words and phrases" which may usefully be reproduced as under:- The term "proceedings" is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A "proceeding" would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehens ive expression and includes all possible steps in the action under the law , from its commencement to the execution of the judgment."
Para- 10. The original order in this case was obviously the one passed by the Deputy Settlement Commissioner in favour of Sher Muhammad predecessor -in-interest of the appellants on 25.07.1960. The portion of the property in dispute consisting of the two shops was subsequently transferred to the first respondent by the Deputy Settlement Commissioner on 24.08.1963, which order was set aside by the Additional Settlement Commissioner vide his order dated 24.11.1973 in suo motu revisional jurisdiction, which order was impugned in the Constitutional Petition filed by the said respondent. Therefore, at the time the original order dated 25.07.1960 in favour of the predecessor-in-interest of the appellants was passed by the Deputy Settlement Commissioner as well as at the time the subsequent order dated 24.08.1963 was passed by him, the law as it stood provided for an appeal. The Constitutional Petition arose out of the proceedings with regard to the transfer of the property in dispute in favour of the predecessor-in-interest of the appellants, inasmuch, as the final order passed by the Additional Settlement Commissioner restoring the transfer in his favour was challenged in the Constitutional Petition and the original order was subject to appeal when it was passed. This is sufficient to satisfy the requirements of the proviso which is thereby attracted to the present case. There is, therefore, in our opinion, no basis for considering the subsequent changes made in the law whereby the right of appeal was taken away long after the expiry of the period of limitation for filing of appeal against that order and considering the changed position of law with reference to the date of the institution of the Constitutional Petition. We cannot read anything in the language of the proviso to construe it in such a manner. The obvious intention underlying the provision was to abolish Intra-Court Appeal in cases in which the impugned order in the Constitutional Order arises out of the proceedings in which the original order was appealable. Necessarily therefore, the question whether the original order was appealable or not will be determinable with reference to the law that was applicable on the date of such original order and not the date when the matter came before the High Court in Constitutional jurisdiction. Similarly, we are unable to see any force in the contention that the word "proceedings" should be given restricted meaning so as to confine it to the proceedings before the authority which passed the order under challenge in the Constitutional Petition which in the present case was suo motu proceedings commenced by the Settlement Commissioner. By no stretch can the order passed in revision be construed as the original order as contemplated by the proviso under consideration. It is also possible to construe the language of the proviso to hold that the relevant date for determining whether appeal lay against the original order passed by the Settlement Authorities, or not was the date when the impugned order was passed by the Additional Settlement Commissioner on 24.1 1.1973.
8. In the above circumstances, we are confident to hold that the original order in the instant case is dated 02.02.1952 which was subsequently subject of The Displaced Persons (Compensation and Rehabilitation) Act, 1958 and admittedly against the said order , appeal, revision and review was competent, therefore, the instant Intra- Court Appeal is not competent. The same stands dismissed as such. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.